When George W. Bush and Dick Cheney
launched their forever
wars -- under the banner of a “Global War on Terror”
-- they unleashed an unholy trinity of tactics. Torture, rendition,
and indefinite detention became the order of the day. After a partial
suspension of these policies in the Obama years, they now appear
poised for resurrection.

For eight years under President Obama,
this country’s forever wars continued, although his
administration retired
the expression “war on terror,” preferring to describe
its war-making more vaguely as an effort to “degrade
and destroy” violent jihadists like ISIS. Nevertheless, he
made major efforts to suspend Bush-era violations of U.S. and
international law, signing executive orders to that effect on the day
he took office in 2009. Executive Order 13491, “Ensuring
Lawful Interrogations,” closed the CIA’s secret torture
centers -- the “black sites” -- and ended permission for
the Agency to use what had euphemistically become known as “enhanced
interrogation techniques.”

On that same day in 2009, Obama issued
Executive Order 13492, designed -- unsuccessfully, as it turned out
-- to close the U.S. military prison at Guantánamo Bay, the
site of apparently endless detention without charges or trials. In
2015, Congress reinforced Obama’s first order in a clause
for the next year’s National Defense Authorization Act that
limited permissible interrogation techniques to those described in
the U.S. Army Field Manual section on “human intelligence
collector operations.”

All of that already seems like such
ancient history, especially as the first hints of the Trump era begin
to appear, one in which torture, black sites, extraordinary
rendition, and so much more may well come roaring back. Right now,
it’s a matter of reading the Trumpian tea leaves. Soon after
the November election, Masha Gessen, a Russian émigrée
who has written two books about Vladimir Putin’s regime, gave
us some
pointers on how to do this. Rule number one: “Believe the
autocrat.” When he tells you what he wants to do -- build a
wall, deport millions, bring back torture -- “he means what he
says.” Is Gessen right? Let’s examine some of those
leaves.

Torture Redux

It should come as no surprise to
anyone who paid minimal attention to the election campaign of 2016
that Donald Trump has a passionate desire to bring back torture. In
fact, he campaigned on a platform of committing war crimes of various
kinds, occasionally even musing about whether the United States could
use
nukes against ISIS. He promised
to return waterboarding to its rightful place among
twenty-first-century U.S. practices and, as he so eloquently put it,
“a hell of a lot worse.” There’s no reason, then,
to be shocked that he’s been staffing his administration with
people who generally feel the same way (Secretary of Defense James
“Mad Dog” Mattis being
an obvious exception).

The CIA was certainly not
the only outfit engaged in torture in the Bush years, but it’s
the one whose practices were most thoroughly examined
and publicized. Despite his enthusiasm for torture, Trump’s
relationship with the Agency has, to say the least, been frosty. Days
before his inauguration, he responded to revelations of possible
Russian influence on the U.S. election by accusing its operatives of
behaving like Nazis, tweeting: “Intelligence agencies should
never have allowed this fake news to 'leak' into the public. One last
shot at me. Are we living in Nazi Germany?”

He quickly appointed a new director of
the CIA (as hasn’t been true of quite a few other positions in
his administration). He chose former Congressman Mike Pompeo, whose
advice about torture he has also said he would consider seriously. A
polite term for Pompeo’s position on the issue might be:
ambiguous. During his confirmation hearings, he maintained
that he would “absolutely not” reinstate waterboarding or
other “enhanced techniques,” even if the president
ordered him to. “Moreover,” he added, “I can’t
imagine that I would be asked that.”

However, his written replies to the
Senate Intelligence Committee told quite a different, far less
forthright tale. Specifically, as the British Independentreported,
he wrote that if a ban on waterboarding were shown to impede the
“gathering of vital intelligence,” he would consider
lifting it. He added that he would reopen the question of whether
interrogation techniques should be limited to those found in the Army
Field Manual. (“If confirmed, I will consult with experts at
the Agency and at other organizations in the U.S. government on
whether the Army Field Manual uniform application is an impediment to
gathering vital intelligence to protect the country.”)

In other words, as the Independent
observed, if the law prohibits
torture, then Pompeo is prepared to work to alter the law. “If
experts believed current law was an impediment to gathering vital
intelligence to protect the country," Pompeo wrote to the Senate
committee, “I would want to understand such impediments and
whether any recommendations were appropriate for changing current
law.” Unfortunately for both the president and him, there are
laws against torture that neither they nor Congress have the power to
change, including the U.N. Convention against Torture, and the Geneva
Conventions.

Nor is Mike Pompeo the only Trump
nominee touched by the torture taint. Take, for instance, the
president’s pick for the Supreme Court. From 2005 to 2006, Neil
Gorsuch worked in the Justice Department’s Office of Legal
Counsel, the wellspring for John Yoo’s and Jay Bybee’s
infamous “torture
memos.” Gorsuch also assisted
in drafting Bush’s “signing statement” on the
2005 Detainee Treatment Act. That act included an amendment
introduced by Senator John McCain prohibiting the torture of
detainees. As the White House didn’t want its favorite
interrogation methods curtailed, Gorsuch recommended putting down “a
marker to the effect that... McCain is best read as essentially
codifying existing interrogation policies.” In other words, the
future Supreme Court nominee suggested that the McCain amendment
would have no real effect, because the administration had never
engaged in torture in the first place. This approach was the best
strategy, he argued, to “help inoculate against the potential
of having the administration criticized sometime in the future for
not making sufficient changes in interrogation policy in light of the
McCain portion of the amendment.”

In his brief tenure at the Office of
Legal Counsel, Gorsuch provided
further aid to the supporters of torture by, for example, working on
government litigation to prevent the exposure of further “Darby
photos.” These were the shocking
pictures from Iraq’s Abu Ghraib prison that came into the
possession of U.S. Army Sergeant Joe Darby. He then passed them up
the chain of command, which eventually led to the public revelation
of the abuses in that U.S.-run torture palace.

Trump’s new attorney general, Jeff Sessions, is
also a torture enthusiast. He was one of only nine senators to vote
against the 2005 Detainee Treatment Act. The Act limited the military
to the use of those interrogation methods found in the Army Field
Manual. In 2015, he joined just 20 other senators in opposing an
amendment to the next year’s military appropriations bill,
which extended the Field Manual rules to all U.S. agencies involved
in interrogation, not just the military.

Reviving the Black Sites?

So far, President Trump hasn’t had the best of luck
with his executive orders. His two travel bans, meant to keep Muslims
from entering the United States, are at present trapped in federal
court, but worse may be in the offing.

Trump promised during the campaign to
reopen the CIA’s notorious black
sites and bring back torture. Shortly after the inauguration, a
draft executive order surfaced
that was clearly intended to do just that. It rescinded President
Obama’s orders 13491 and 13492 and directed the secretary of
defense and the attorney general, together with “other senior
national security officials,” to review the interrogation
policies in the Army Field Manual with a view to making
“modifications in, and additions to those, policies.”
That would mean an end run around Congress, since it doesn’t
take an act of that body to rewrite part of a manual (and so
reinstitute torture policy).

It
also called on the director of national intelligence, the CIA
director, and the attorney general to “recommend to the
president whether to reinitiate a program of interrogation of
high-value alien terrorists to be operated outside the United States
and whether such program should include the use of detention
facilities operated by the Central Intelligence Agency.” In
other words, they were to consider reopening the black sites for
another round of “enhanced interrogation techniques.”

As in so many such documents, that
draft order included a cover-your-ass clause, in this case suggesting
that “no person in the custody of the United States shall at
any time be subjected to torture or cruel, inhuman, or degrading
treatment or punishment, as proscribed by U.S. law.” As we
learned in the Bush years, however, such statements have no real
effectbecause,
as in a 2002
memo produced by John Yoo and Jay Bybee, “torture”
can be redefined as whatever you need it to be. That memo certified
that, to qualify as torture, the pain experienced by a victim would
have to be like that usually associated with “serious physical
injury, such as organ failure, impairment of bodily function, or even
death.” In other words, if he didn't die or at least come
close, you didn’t torture him.

After the recent draft executive order
on these subjects was leaked to the media and caused a modest to-do,
a later version appeared
to drop the references to black sites and torture. While no final
version has yet emerged, it’s clear enough that the initial
impulse behind the order was distinctly Trumpian and should be taken
seriously.

As soon as the draft order surfaced
in the press in late January, the White House disclaimed all
knowledge of it and no version of it appears on current lists of
Trump executive actions since taking office. But keep in mind that
presidents can issue secret executive orders that the public may
never hear about -- unless the news spills out from an administration
whose powers of containment so far could be compared
to those of a sieve.

Déjà Vu,
Rendition Edition

Notably, neither of Obama’s Inauguration Day
executive orders addressed extraordinary rendition. In fact, this was
a weapon he preferred to keep available.

What is extraordinary rendition?Ordinary rendition simply means
transferring someone from one legal jurisdiction to another, usually
through legal extradition. Rendition becomes “extraordinary”
when it happens outside the law, as when a person is sent to a
country with which the United States does not have an extradition
treaty, or when it is likely (or certain) that the rendered person
will be tortured in another country.

In the Bush years, the CIA ran an
extraordinary rendition
machine, involving the kidnapping
of terror suspects (sometimes, as it turned out, quite innocent
people) off the streets of global cities as well as in the
backlands of the planet, and sending them to those brutal CIA black
sites or rendering them to torturing regimes around the world.
Rendition continued in a far more limited way during Obama’s
presidency. For example, a 2013 Washington
Post story described
the rendition of three Europeans “with Somali roots” in
the tiny African country of Djibouti and of an Eritrean to Nigeria.
The article suggested that, in part because of congressional
intransigence on closing Guantánamo and allowing the jailing
and trial of suspected terrorists in U.S courts, rendition
represented “one of the few alternatives” to the more
extreme option of simply killing
suspects outright, usually by drone.

Recently, there was news that a Trump
associate might have been involved in planning a rendition of his
own. Former CIA Director James Woolsey told
the Wall Street Journal that,
last September, Lieutenant General Michael Flynn discussed arranging
an extralegal rendition with the son-in-law of Turkish President
Recep Tayyip Erdogan and Turkish Foreign Minister Mevlut Cavusoglu.
At the time, he was serving as an adviser to the Trump campaign. He
later -- briefly -- served as President Trump’s national
security adviser.

The target of this potential rendition? Fethullah Gulen,
an Islamic cleric who has lived for decades in the United States.
President Erdogan believes that Gulen was behind a 2016 coup attempt
against him and has asked the U.S. to extradite him to Turkey. The
Obama administration temporized on the subject, insisting on
examining the actual evidence of Gulen’s involvement.

Flynn’s foray may have been an
instance of potential rendition-for-profit, a plan to benefit one of
his consulting clients. At the time, Flynn’s (now-defunct)
consulting firm, the Flynn Intel Group, was working for a Dutch
corporation, Inovo, with ties to Erdogan. The client reviewed a draft
op-ed eventually published
in the Hill
in which Flynn argued that Gulen should be extradited, because he is
a “radical cleric” and Turkey is “our friend.”
In addition to lying
about his contacts with the Russian ambassador during the election
campaign, it turns out that Flynn was probably working
as an unregistered foreign agent for Turkish interests at that time.

Mike Pompeo also appears to be bullish
on renditions. In his written
testimony to the Senate Intelligence Committee, he indicated that
under him the CIA would probably continue this practice. When asked
how the Agency would avoid sending prisoners to countries known to
engage in torture, his reply could have come straight from the
Bush-Cheney playbook:

“I understand
that assurances provided by other countries have been a valuable tool
for ensuring that detainees are treated humanely. In most cases other
countries are likely to treat assurances provided to the United
States government as an important matter.”

Asking for such assurances has in the
past given the U.S. government cover for what was bound to occur in
the prisons of countries known for torture. (Just ask Maher
Arar rendered to Syria or Binyam
Mohammed rendered to Morocco about what happened to them.)

We’ll Always Have
Guantánamo...

“We’ll always have Paris,”
Rick reminds
Ilsa during their bittersweet goodbye in the classic film Casablanca.
Our Guantánamo lease with Cuba (which reads, "for use as
coaling [refueling] or naval stations only, and for no other
purpose”) is a permanent one. So it looks like we’ll
always have Guantánamo, with its memories of torture
and murder, and its remaining 41
prisoners, undoubtedly stranded there forever.

As it happens, Supreme Court nominee
Neil Gorsuch’s fingerprints are all over the Bush
administration’s Guantánamo policy, too. While at the
Office on Legal Counsel, he helped the administration fight a major
legal challenge to that policy in Hamdan
v. Rumsfeld.
In that case,
the government argued that detainees at Guantánamo did not
have the right of habeas corpus,
that the president has the authority to decide not to abide by the
Geneva Conventions, and that detainees could be tried by military
“commissions” in Cuba rather than by U.S. courts. Given
that history, it’s unlikely he’d rule in favor of any
future challenge to whatever use President Trump made of the prison.

While on the campaign trail, Trump
made it clear that he would keep Guantánamo eternally open. In
a November rally in Sparks, Nevada, he told
a cheering crowd:

“This morning, I
watched President Obama talking about Gitmo, right, Guantánamo
Bay, which by the way, which by the way, we are keeping open. Which
we are keeping open... and we're gonna load it up with some bad
dudes, believe me, we're gonna load it up.”

In mid-February, Trump Press Secretary
Sean Spicer reiterated
his boss’s affection for the prison, when he told the White
House press corps that the president believes it serves “a
very, very healthy purpose in our national security, in making sure
we don’t bring terrorists to our seas.” Perhaps Spicer
meant “our shores,” but the point was made. Trump remains
eager to keep the whole Guantánamo prison system -- including,
we can assume, indefinite detention --up and running as an alternative
to bringing prisoners to the United States.

It seems that the head of the Pentagon
agrees. In December 2016, retired Marine General (now Secretary of
Defense) James Mattis told
the Senate Armed Services Committee that any detainee who “has
signed up with this enemy” and is captured wherever “the
president, the commander-in-chief, sends us” should know that
he will be a “prisoner until the war is over.” Given that
our post-9/11 military conflicts are truly forever wars, in Mattis’s
view, pretty much anyone the U.S. captures in Syria, Iraq,
Afghanistan, Somalia, Yemen, or who knows where else will face at
least the possibility of spending the rest of his life in Guantánamo.

Reading the Tea Leaves

As far as we know, President Trump has yet to green-light
his first case of torture or his first extraordinary rendition, or
even to add a single prisoner to the 41 still held at Guantánamo.
All we have for now are his ominous desires and promises -- and those
of his underlings. These are enough, however, to give us a clear
understanding of his intentions and those of his appointees. If they
can, they will resurrect the unholy trinity of torture, rendition,
and indefinite detention. The future may not yet be inscribed in
Trumpian gold anywhere, but on such matters we should believe the
autocrat.